WPMS/1942/2011 of SHAKHWAT Vs RAKESH KUMAR CHATURVEDI

I N THE HI GH COURT OF UTTARAKHAND AT NAI NI TAL

HON’BLE THE ACTI NG CHI EF JUSTI CE,

SHRI JUSTI CE MANOJ KUMAR TI W ARI

W r it Pet it ion ( M/ S) No. 1 9 4 2 of 2 0 1 1

6[TH] DECEMBER, 2 0 2 4

Shakhwat

-Petitioner

Ver su s

Rakesh Kumar Chaturvedi & others –Respondents

Counsel for the petitioner:

Counsel for the respondent:

Mr. Mahavir Singh Tyagi, learned Senior Counsel, assisted by Mr. Chandra Prakash, learned counsel.

None appears.

JUDGMENT

Respondent Nos. 1, 2 & 3 filed suit for permanent injunction against petitioner, his brother Shaukat, and one Mr. Javed s/ o Bundu. The said suit was decreed ex-parte vide judgment dated 30.09.2008. Petitioner alone moved an application under Order 9 Rule 13 CPC for setting aside ex-parte decree. Petitioner’s application was rejected by learned Trial Court vide order dated 09.07.2009. Petitioner challenged the order dated 09.07.2009 in Miscellaneous Civil Appeal No. 70 of 2009. His Appeal was dismissed by learned 4[th] FTC / Additional District Judge, Haridwar vide judgment dated 11.12.2009.

2. In this writ petition, petitioner has challenged the ex-parte judgment dated 30.09.2008, order dated 09.07.2009, whereby his application under Order 9 Rule 13 CPC was rejected and also the judgment dated 11.12.2009, passed by learned Appellate Court.

3. Learned Senior Counsel appearing for petitioner submits that the ex-parte decree dated 30.09.2008 deserved to be set aside, as one of the defendant, namely, Shaukat s/ o Yusuf had died during pendency of the suit and the ex-parte judgment was passed against dead person.

4. Learned Senior Counsel appearing for petitioner points out that the suit was filed on 20.07.2004, petitioner’s brother Shaukat died on 27.10.2006; while, ex-parte decree was passed by Trial Court on 30.09.2008. Thus, he submits that it was incumbent upon plaintiffs to bring on record legal representatives of Shaukat (defendant no. 1). He, however, fairly submits that Shaukat was unmarried and issueless, and it is the petitioner, who succeeded to the estate of Shaukat. In paragraph no. 4 of the writ petition, petitioner admits that he is the sole legal heir of his late brother Shaukat.

5. Perusal of order dated 09.07.2009 passed by learned Trial Court, whereby petitioner’s application under Order 9 Rule 13 CPC was rejected, reveals that the summons issued by Trial Court were duly served upon petitioner as well as his brother Shaukat. Both petitioner and his brother engaged counsel, namely Mr. Rajesh Kumar Chauhan, however, thereafter,

petitioner and his brother did not pursue the matter any further and did not appear before the Trial Court, therefore, learned Trial Court was left with no other option, but, to decide the suit ex-parte. Order 9 Rule 13 CPC, which was invoked by petitioner for moving application for setting aside ex-parte decree, reads as under: -

“ 1 3 . Set t in aside decr ee ex p ar t again st defen dan t . I n any case in which decree is passed ex parte against defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint day for proceeding with the suit:

Provided that where the decree is of such nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:

Provided further that no Court shall set aside decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.

Explanation-

Where there has been an appeal against decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree.”

Perusal of the aforesaid provision reveals that

an application for setting aside ex-pare decree can be moved by defendant on the ground that (i) the summons issued by Trial Court was not duly served upon him; and (ii) he was prevented by any sufficient cause from appearing when the suit was called on for

hearing. The application made by petitioner is absolutely silent on the aforesaid aspects and none of these two grounds were taken in the application.

7. Hon’ble Supreme Court in the case of Parimal v. Veena Alias Bharti, (2011) 3 SCC 545 has held as under: -

“12. It is evident from the above that an ex parte decree against defendant has to be set aside if the party satisfies the court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in case where the defendant had notice of the date and sufficient time to appear in the court. The legislature in its wisdom, made the second proviso mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein.

13. “Sufficient cause” is an expression which has been used in large number of statutes. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, word “sufficient” embraces no more than that which provides platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in case and duly examined from the viewpoint of reasonable standard of cautious man. In this context, “sufficient cause” means that the party had not acted in negligent manner or there was want of bona fide on its part in view of the facts and circumstances of case or the party cannot be alleged to have been “not acting diligently” or “remaining inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide Ramlal v. Rewa Coalfields Ltd., Lonand Grampanchayat v. Ramgiri Gosavi , Surinder Singh Sibia v. Vijay Kumar Sood and Oriental Aroma Chemical Industries Ltd. v. Gujarat I ndustrial Development Corpn.)

14. In Arjun Singh v. Mohindra Kumar [ AIR 1964 SC 993] this Court observed that every good cause is

sufficient cause and must offer an explanation for non-appearance. The only difference between “good cause” and “sufficient cause” is that the requirement of good cause is complied with on lesser degree of proof than that of “sufficient cause”. (See also Brij Indar Singh v. Kanshi Ram , Manindra Land and Building Corpn. Ltd. v. Bhutnath Banerjee and Mata Din v. A. Narayanan.)

15 While deciding whether there is sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. (Vide State of Bihar v. Kameshwar Prasad Singh, Madanlal v. Shyamlal, Davinder Pal Sehgal v. Partap Steel Rolling Mills (P) Ltd. , Ram Nath Sao v. Gobardhan Sao, Kaushalya Devi v. Prem Chand , Srei International Finance Ltd. v. Fairgrowth Financial Services Ltd. and Reena Sadh v. Anjana Enterprises .)

16. In order to determine the application under Order 9 Rule 13 CPC, the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with reasonable defence. Sufficient cause is question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be straitjacket formula of universal application.”

8. In the present case, ex-parte decree was sought to be set aside by petitioner on the ground that it has been passed against dead person, inasmuch as, his brother Shaukat died during trial of the suit. Petitioner admits in the writ petition that he is the sole legal heir of his brother Shaukat, who was unmarried and died issueless.

9. It is not in dispute that petitioner who is the sole legal heir of late Shaukat, was defendant in the

suit and it was the petitioner, who would alone have been substituted in place of his late brother Shaukat, if any application for substitution was filed by plaintiff.

10. Since, petitioner was already defendant in the suit, therefore, he cannot take shelter behind the technicality that formal application for substituting legal heir of late Shaukat was not filed by the plaintiff. Hon’ble Supreme Court in the case of N. Jayaram Reddy and another v. Revenue Divisional Officer and Land Acquisition Officer Kurnool, (1979) 3 SCC 578,has held as under: -

“28. If this is the discernible principle underlying Order 22 Rules 3 and 4 it has been demonstrably established by interpretation put on these two rules. Original view was that all legal representatives of deceased plaintiff or defendant must be substituted on the pain of the action abating. With utmost diligence from multitude some one may escape notice and the consequent hardship in abatement of action led this Court to assert the principle that where some legal representatives are brought on record permitting an inference that the estate is adequately represented, the action would not abate though it would be the duty of the other side to bring those legal representatives on record who are overlooked or missed even at later date. When the aforementioned two provisions speak of legal representatives it only means that if after diligent and bona fide enquiry the party liable to bring the legal representatives on record ascertains who are the legal representatives of deceased party and brings them on record within the time limited by law, there is no abatement of the suit or appeal on the ground that some other legal representatives have not been brought on record, because the impleaded legal representatives sufficiently represent the estate of the deceased and the decision would bind not only those impleaded but the entire state including the interest of those not brought on record. This view has been consistently adopted by this Court in Daya Ram v. Shyam Sundari ; N.K. Mohammad Sulaiman v. N.C. Mohammad Ismail; and Harihar Prasad Singh v. Balmiki Prasad Singh. The principle deducible from these decisions is that not only the interest of the deceased was adequately taken care

of by those who were on record but they had the opportunity to put forth their case within permissible limits. Neither the case of the deceased nor of his successors-in-interest has gone by default. In other words, the principle is that if the deceased had as party right to put forth his case, those likely to be affected by the decision on death of the deceased had the same opportunity to put forth their case and even if from large number having identical interest some are not brought on record those who are brought on record would adequately take care of their interest and the cause in the absence of some such would not abate. In legal parlance this procedure affords an opportunity of being heard in all its ramifications before decision on the pending lis is taken.

29. Another principle in this behalf which has found recognition of the Courts is that if the legal representatives of the deceased party are before the Court in the same action even if in another capacity, failure to bring them on record in specific legal position would not result in abatement of the action. In Mahabir Prasad v. Jage Ram [ (1971) 1 SCC 265 : (1971) 3 SCR 301] this Court was called upon to consider whether where legal representative of deceased party is on record in another capacity, failure to implead him as legal representative of the deceased party would result in abatement of the action? In that case Mahabir Prasad, his wife Saroj Devi and his mother Gunwanti Devi filed suit against Jage Ram and two others for recovering rent then due in the aggregate amount of Rs 61,750. The suit ended in decree. The execution of the decree was resisted by the defendants on the plea inter alia that the decree was inexecutable because of the provisions of Delhi Land Reforms Act, 1954. This contention found favour with the executing court and the application for execution was dismissed. Mahabir Prasad, one of the decree-holders alone appealed against that order and impleaded Gunwanti Devi and Saroj Devi as party respondents along with the original judgment-debtors. Saroj Devi died in November 1962 and Mahabir Prasad applied that the name of Saroj Devi be struck off from the array of respondents. The High Court made an order granting the application “subject to all just exceptions”. Subsequently the High Court dismissed the appeal holding that because the heirs and legal representatives of Saroj Devi were not brought on record within the period of limitation, the appeal abated in its entirety. This Court, while setting aside the order made by the High Court holding that the appeal abated, observed as under:

“Even on the alternative ground that Mahabir Prasad being one of the heirs of Saroj Devi there can be no abatement merely because no formal application for showing Mahabir Prasad as an heir and legal representative of Saroj Devi was made. Where in proceeding party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act, the proceeding will not abate.”

30. The principle deducible from this decision of the Court is that where one of the legal representatives of the deceased party is before the Court at the time when the proceeding is heard but in another capacity, it is immaterial whether he is described as such or not and even if there are other legal representatives, the cause will not abate.

11. In the case of Daya Ram and others v. Shyam Sundari and others, 1964 SCC OnLine SC 153, Their Lordships of Hon’ble Supreme Court have held as under: -

“11. The case before us is entirely different. There was decree in favour of Shyam Sundari — and that is the subject-matter of this appeal. The question is whether there has been abatement of the appeal against Shyam Sundari. Shyam Sundari's heirs have been brought on record within the time allowed by law and the only question is whether the fact that two of the legal representatives of Shyam Sundari have been omitted to be brought on record would render the appeal incompetent. This turns on the proper interpretation of Order 22 Rule 4 of the Civil Procedure Code:

“4. (1) Where …. sole defendant or sole surviving defendant dies and the right to sue survives, the Court on an application made in that behalf, shall cause the legal representatives of the deceased defendant to be made party and shall proceed with the suit.

4. (3) Where within the time limited by law no application is made under sub-rule (1) the suit shall abate as against the deceased defendant.”

When this provision speaks of “legal representatives” is it the intention of the legislature that unless each and every one of the legal representatives of the deceased defendants, where these are several, is brought on record there is no proper constitution of the suit or appeal, with the result that the suit or appeal would abate? The almost universal consensus of opinion of all the High Courts is that where plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, that the impleaded legal representatives sufficiently represent the estate of the deceased and that decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record. The principle of this rule of law was thus explained in an early decision of the Madras High Court in Kadir v. Muthukrishna Ayyar [ ILR 26 Mad. 230] . The facts of that case were that when the defendant died the first defendant before the Court was impleaded as his legal representative. The impleaded person raised no objection that he was not the sole legal representative of the deceased defendant and that there were others who had also to be joined. In these circumstances, the Court observed:

“In our opinion person whom the plaintiff alleges to be the legal representative of the deceased defendant and whose name the Court enters on the record in the place of such defendant sufficiently represents the estate of the deceased for the purposes of the suit and in the absence of any fraud or collusion the decree passed in such suit will bind such estate…. If this were not the law, it would, in no few cases, be practically impossible to secure complete representation of party dying pending suit and it would be specially so in the case of Muhammadan party and there can be no hardship in provision of law by which party dying during the pendency of suit, is fully represented for the purpose of the suit, but only for that purpose, by person whose name is entered on the record in place of the deceased party under Sections 365, 367 and 368 of the Civil Procedure Code, though such person may be only one of several legal representatives or may not be the true legal representative.”12. This, in our opinion, correctly represents the law. It is unnecessary, here, to consider the question whether the same principle would apply when the person added is not the true legal representative at all. In case where the person brought on record is legal representative we consider that it would be

consonant with justice and principle that in the absence of fraud or collusion the bringing on record of such legal representative is sufficient to prevent the suit or the appeal from abating. We have not been referred to any principle of construction of Order 22 Rule 4 or of the law which would militate against this view. This view of the law was approved and followed by Sulaiman, Acting C.J. in Muhammad Zafaryab Khan v. Abdul Razzaq Khan [ ILR 50 Allahabad 857] . similar view of the law has been taken in Bombay — see Jehrabi Sadullakhan Mokasi v. Bismillahi Sadruddin Kaji [ AIR 1924 Bom 420] — as also in Patna — See Lilo Sonar v. Jhagru Sahu [ ILR 3 Patna 853] and Shib Dutta Singh v. Sheikh Karim Bakhas [ ILR 4 Patna 320] as well as in Nagpur — Abdul Baki v. R.B. Bansilal Abirchand firm, Nagpur [ ILR 1944 Nagpur 577] . The Lahore High Court has also accepted the same view of the law — See Umrao Begum v. Rehmat I lahi [ ILR (1939) 20 Lahore 433] . We are, therefore, clearly of the opinion that the appeal has not abated.

12. In the present case, petitioner was co-defendant with his brother late Shaukat, and petitioner is also the sole legal heir of late Shaukat, therefore, he cannot contend that the suit stood abated due to death of Shaukat and decree passed by learned Trial Court is nullity.

13. Since as sole legal heir of late Shaukat, petitioner was made defendant in the suit, therefore, death of his brother Shaukat has not caused any prejudice to the estate of late Shaukat, as petitioner as his legal representative was already there before the Trial Court. Even otherwise also, none of the grounds on which an ex-parte decree can be set aside was taken by petitioner in his application filed under Order 9 Rule 13 CPC and the prayer for setting aside ex-partedecree was made on altogether different ground, which was not available to petitioner.

14. Learned Trial Court as well as Appellate Court have considered and discussed all relevant aspects in great detail and passed reasoned orders. Since both the Courts below have taken concurrent view, which is in consonance with settled legal position, therefore, this Court does not find any reason to interfere with the view taken by learned Trial Court, as affirmed by learned Appellate Court.

15. The writ petition, thus, fails and is dismissed. No order as to costs.

__________________________________ MANOJ KUMAR TI W ARI , A.C.J.

Dt: 6[th] December, 2024 NavinDigitally signed by NAVEEN CHANDRA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, NAVEEN 2.5.4.20=3be23325146e76a0642bdf4943fb9046f487df006da82a131bb4e4403d3c0a15, postalCode=263001, st=UTTARAKHAND, serialNumber=18167EEFB5CA8CFFD421A103819DA875643AF56D653D095C6ED9A86DAAB21CE5, cn=NAVEEN CHANDRACHANDRA Date: 2024.12.16 11:23:46 +05'30'